Ind. AG plans to take on political robo-calls

Jessica M. Karmasek Sep. 29, 2011, 2:26pm


INDIANAPOLIS (Legal Newsline) - Indiana Attorney General Greg Zoeller said Wednesday the state will appeal a federal court ruling that would prevent Indiana from enforcing its longstanding law prohibiting out-of-state political robo-calls to residents.

The U.S. District Court for the Southern District of Indiana ruled Tuesday in favor of Patriotic Veterans Inc., a political advocacy organization based in Illinois, in its legal challenge to Indiana's Automatic Dialing Machine Statute.

State law allows robo-calls to households only if a live operator first obtains the consumer's permission or if the recipient opts in to receiving such calls.

Under the Automatic Dialing Machine statute, violations of the law can result in the attorney general filing a lawsuit seeking an injunction and civil penalties up to $5,000 against those responsible.

The political group filed the federal lawsuit last June, challenging the statute's legality.

According to the federal court's declaratory judgment and injunction, Indiana's law is preempted by the federal Telephone Consumer Protection Act as it applies to interstate political prerecorded calls.

"If Congress intended for the TCPA to have no preemptive effect, it would not have included the word 'intrastate' in the savings clause; the fact that it did indicates that it intended for state laws relating to the interstate use of automatic telephone dialing systems -- or at least a portion of those laws, as discussed below -- to be preempted, while more restrictive intrastate laws would be enforceable," Judge William T. Lawrence wrote in the district court's nine-page ruling.

Indiana argued that the TCPA's savings clause operates to save its statute from any preemptive effect the federal act might have.

"(N)othing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits..." the clause says.

The district court found that a literal reading of the clause compels "an odd result."

"In this case, given the awkward grammatical structure of the sentence and the legislative history discussed above, the Court does not believe that the literal reading of the statute is what Congress intended. Rather, Congress intended to distinguish between state laws applying to the interstate use of automatic telephone dialing systems, which are preempted, and state laws applying to the intrastate use of automatic telephone dialing systems, which pursuant to the savings clause are not preempted as long as they are more restrictive than the TCPA," Lawrence wrote.

However, even if the savings clause is read in the strictly literal sense, it does not operate to save the Indiana statute as it applies to the plaintiff, the court said.

"The IADMS does not prohibit the use of automatic telephone dialing systems; rather, it provides that automatic telephone dialing systems may be not used unless certain requirements are met or certain exceptions apply. In other words, the IADMS regulates the use of automatic telephone dialing systems," Lawrence wrote.

"Even if read literally, the savings clause would not apply to the regulation of the interstate use of automatic telephone dialing systems; rather, it would operate only to save state laws that prohibit their interstate use."

Zoeller said the federal court's ruling is a "direct threat" to the privacy of Indiana residents.

"We firmly believe that Indiana's restriction on out-of-state political robo-calls should remain in place to protect Hoosier consumers, as it has since 1988. Hoosiers have repeatedly told us they don't want annoying, obtrusive robo-calls from politicians or anyone else," he said in a statement.

The attorney general said he would "vigorously appeal" the ruling to the U.S. Court of Appeals for the Seventh Circuit and ask that the injunction be lifted, and that he would ask for a stay of Tuesday's ruling pending appeal.

From Legal Newsline: Reach Jessica Karmasek by email at

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